Citation: SafeWork NSW v International Oils Machinery (Aust) Pty Ltd [2018] NSWDC 380
Court: District Court of New South Wales
Date: 10 December 2018
Judge: Scotting DCJ
Background
The defendant company operated a cardboard and plastic recycling business in Toormina, NSW. It leased a horizontal bale press machine from Orora Limited under an agreement that expressly prohibited altering any safety feature without written approval. The machine included a meshed metal frame acting as a physical barrier to the moving parts of the automatic tie section.
Some months before the incident, a worker had replaced two bolts on the mesh guard with wing nuts. This modification was made with the company's knowledge and was intended to allow easier hand-access to the machine to realign wires that regularly became misaligned during the tying cycle. The company's safe work method statement did not address the risk of injury from contact with unguarded moving parts, and there was no record of the injured worker having been trained in it.
On 6 November 2015, the worker accessed the moving parts of the tie section to realign a misaligned wire, mistakenly believing he had turned the machine off. The machine was still in automatic mode. The twisters activated, caught his thumb between two wires, and dragged his left hand into the machine. He was trapped for approximately two and a half hours. He sustained broken fingers, amputation and reattachment of his thumb, and permanent nerve and tendon damage, requiring five surgeries.
Legal Issues
- Whether the company, as a person conducting a business or undertaking under section 19(1) of the Work Health and Safety Act 2011, failed to comply with its primary duty of care and thereby exposed the worker to a risk of death or serious injury contrary to section 32 of that Act
- The appropriate sentence, having regard to the objective seriousness of the offence, aggravating and mitigating factors, the company's financial capacity to pay a fine, and applicable sentencing principles
Decision
The company pleaded guilty to the charge under section 32 of the Work Health and Safety Act 2011, which carries a maximum fine of $1.5 million. The court assessed the objective seriousness of the offence. The physical safety barrier had been modified with the company's knowledge, the safe work method statement did not address the identified risk, and the worker had not been trained in it. Interlocking safety mechanisms, as specified in the relevant Australian Standard, were not in place and would have prevented the incident.
The court considered several mitigating factors. The company had no prior record, cooperated with the SafeWork NSW investigation, and entered an early guilty plea attracting a 25 per cent discount. The directors demonstrated genuine remorse through affidavit evidence and practical support provided to the injured worker after the incident, including accompanying him to medical appointments and offering financial assistance.
The court also addressed the company's financial capacity to pay. The company had made modest profits across the relevant financial years (ranging from $866 to $17,892), was in overdraft of approximately $27,000 at the time of sentencing, and the directors drew a combined annual income of between $50,000 and $60,000. The court was satisfied that a substantial fine risked forcing the company into liquidation and exercised its discretion to reduce the fine accordingly.
Balancing the seriousness of the offence, the need for general deterrence, and the company's limited financial means, the court imposed a fine of $20,000, reduced by 25 per cent for the guilty plea, resulting in a final fine of $15,000.
Orders Made
- The company is convicted of the offence under section 32 of the Work Health and Safety Act 2011
- A fine of $15,000 is imposed (being $20,000 reduced by 25 per cent for the guilty plea)
- Pursuant to section 122(2) of the Fines Act 1996, 50 per cent of the fine is to be paid to the prosecutor
- The company is to pay the prosecutor's costs as agreed or assessed
Key Takeaways
- The District Court confirmed that a company's knowledge of a safety modification made by its workers, even absent direct instruction to make the modification, forms part of the factual basis for assessing culpability under the Work Health and Safety Act 2011.
- A safe work method statement that fails to address an identified and foreseeable risk is treated as a relevant factor in establishing the objective seriousness of a WHS offence at sentencing.
- Under section 6 of the Fines Act 1996, a court may reduce a fine where the offender establishes limited financial capacity, but that capacity is not decisive. The need for general deterrence can still support a substantial fine even where a business is at risk of insolvency.
- A 25 per cent discount on penalty applied for an early guilty plea, consistent with the principles in R v Thomson & Houlton and R v Borkowski.
- Post-incident remediation, including revising safety procedures and installing interlocking devices, together with demonstrated practical support for an injured worker, were accepted as evidence of genuine remorse and prospects of rehabilitation.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(i), 21A(3)(k), 21A(3)(m), 22
- Fines Act 1996 (NSW), ss 6, 122(2)
- Australian Standard AS 4024.1201:2014 "Safety of machinery: General principles for design"
Cases:
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Jahandideh v R [2014] NSWCCA 178
- R v Borkowski (2009) 195 A Crim R 1
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Tuala [2015] NSWCCA 8
- R v Youkhana [2004] NSWCCA 412